SC Lawyer, July 2012, #2. What is a Rule 26(f) Conference and Why Should I Care?.

• Author: By Ashley Prickett Cuttino

South Carolina BAR Journal

2012.

SC Lawyer, July 2012, #2.

What is a Rule 26(f) Conference and Why Should I Care?

South Carolina LawyerJuly 2012What is a Rule 26(f) Conference and Why Should I Care?By Ashley Prickett CuttinoWhen countless attorneys hear the word "e-discovery," they duck their heads and hide. For many, it is an intimidating subject. Unfortunately for them, it is time to pull back the covers and face the reality that e-discovery is here to stay. This fact was highlighted in the past year when the first e-dis-covery malpractice suit was filed against the Am Law 100 firm McDermott, Will Emory. While the McDermott allegations involve the failure of the law firm to properly supervise and manage contract attorneys performing a document review for privilege, the allegations also emphasize the need for an e-discovery plan when engaging in litigation today. Engaging in a Rule 26(f) conference with opposing counsel is the cornerstone of a good plan.

For practitioners in federal court, e-discovery has been a part of routine practice since the Federal Rules of Civil Procedure were amended in 2006. In South Carolina, the state court rules of civil procedure were modified in 2011. The amendments to Rules 16, 26, 33, 34, 37 and 45 of the South Carolina Rules of Civil Procedure concerning electronic discovery are substantially similar to the corresponding provisions in the Federal Rules of Civil Procedure.

One of the major requirements in the federal court rules is that attorneys participate in a Rule 26(f) conference. Under state court rules, a Rule 26(f) conference is held at the option of the court or by request of the parties. The goal of the Rule 26(f) conference is to provide a basis for an open exchange of information and a productive dialogue about discovery-related topics, including electronically stored information (ESI). The Federal Rules of Civil Procedure specify that the attorneys:

* must meet to discuss issues concerning the preservation of discoverable information; and * develop a proposed discovery plan.

This requires that attorneys be aware of the location of discoverable data, be knowledgeable about their own client's ESI and be prepared to ask questions about the other side's ESI.

Most practitioners have participated in these conferences before. What many have not done is use them to their legal advantage in the realm of e-discovery. A Rule 26(f) conference is the perfect opportunity to strategically limit or expand the world of documents, and specifically ESI, that will be preserved, collected, reviewed and ultimately produced in a case. Knowledgeable practitioners can use the Rule 26(f) conference to limit the amount of e-discovery that will be preserved, collected and reviewed. For corporate defendants, this can radically reduce the potential costs of the litigation. For plaintiffs, this can cause a limitation on the discovery that may be available to them later in the case. Simply put, the goal of the Rule 26(f) conference on both sides should be to minimize the time and cost of discovery while still ensuring that you will obtain the relevant, responsive information you need from opposing counsel to effectively litigate your case.

Compromise is Key

One of the primary goals of a Rule 26(f) conference is to attempt to get the parties to agree on the "world" of documents that may be relevant to a case. Many attorneys are reluctant to place limits on this type of information early in litigation. This is a mistake. Limitations may be set within reason and may have exclusions that allow for expansion if relevant data is not located within the agreed-upon search. For example, setting date ranges and identifying potential witnesses is one of the best tools for narrowing e-discovery. Another manner to narrow the world of e-discovery is to limit the type of data reviewed. For example, if the case is about a breach of contract, the time tracking software tool would not be applicable to the case. Therefore, there is no reason for a company to have to preserve, collect or review that type of information.

Preparation is essential

Based on the importance of the production of information, the following should be considered when preparing for a Rule 26(f) conference. The more informed the attorneys are, the more capable they will be to address relevant issues and streamline the discovery process. All of this is done with the goal of reducing e-discovery costs and ultimately obtaining relevant and useful documents without overwhelming either side with useless, irrelevant data.

If you are the plaintiff, strategically consider what information you may need. This includes who you believe the key witnesses in the case may be, who else may have had access to the electronic information of the witnesses (such as a secretary), what dates are important to your case, and what type of information is critical. This may include often missed areas of discoverable electronic information such as social media websites, text messages, instant messages and voice mail messages, among others.

For the defendant, it is critical to understand your client's IT structure so that you are knowledgeable enough to know what is and is not "easily accessible" and collectible from an IT standpoint; how much information is available; in what manner the information is kept; and what are the hurdles to the retention and collection of certain documents. This includes knowing as much as possible about the location, volume and logistical challenges that surround the collection of each subset of ESI, as well as your client's position regarding privilege and protective orders. Preparation is key before each Rule 26(f) conference because every client has a different IT structure, including the type of storage and searchability of ESI data.

Knowledge of your client's systems involves much more than an acknowledgement that your client uses computers and obtaining a headcount of how many computers are used. To truly attempt to save your client valuable litigation dollars, counsel needs to understand where the relevant information to the case may be stored. Counsel should then work with the IT department to determine the most cost efficient ways to preserve and collect that data. It may be possible to limit the data to certain systems, such as Outlook or a payroll software system. It may also be possible to limit the key players to a certain server that holds all of the information for a particular project group, etc. Once this information is obtained, you can then present a sensible e-discovery plan to opposing counsel in an effort to corral e-discovery and limit costs.

This may involve a phased discovery plan. Start with the true key players in the case. If the expected data is not obtained from them, then you can have a tiered expansion of the e-discovery until the relevant data is captured. Be aware, however, that for this approach to work, the potential additional data must still be preserved.

If your case is a true ESI case, it is also important to consider applicable deadlines and proposed amendments to the scheduling order in the Rule 26(f) report to the court. It takes time to collect and cull large scale ESI data. Propose realistic deadlines to the court based on the amount of ESI you anticipate reviewing.

Preservation must oe managed

A fallback of many practitioners is to preserve everything "just in case." Because ESI volume is often staggering, this is not a practical solution. Unnecessary preservation takes time and money and is wasteful. It is not likely that forensic imaging of every computer is needed. It is also unlikely that back-up tapes of unimportant and duplica-tive information are necessary. Be prepared to explain your preservation decisions at the Rule 26(f) conference. Disclosure of your preservation plan should help you rest easy at night. If data not initially preserved suddenly becomes relevant later in the case, your disclosure of what was and was not preserved early in the litigation should help you avoid sanctions. If opposing counsel vehemently objects to some portion of the preservation, you can determine the viability of expanding your legal hold. If an agreement as to preservation cannot be reached, a protective order by either party may be sought from the court.

Be carerui what you ask for

When parties refuse to compromise, they should be prepared for the consequences. They range from judicial intervention to the responding party giving you what you requested. In many cases, this could be the equivalent of tens of thousands of documents that you must wade through. The alternative is to narrow the "world of documents" to only those documents that may reasonably contain the information sought.

* Set search expectations. The parties need to agree on the search expectations for each side of the litigation. Depending on the nature of the litigation, there may be ways to discount large portions of ESI in a wholesale manner. * Consider what is "reasonably accessible" information. A party need not provide discovery of ESI from sources that it identifies as not reasonably accessible because of undue burden (access issues) or cost. On a motion to compel discovery or for a protective order, the party from whom discovery is sought has the burden to show that the information is not reasonably accessible because of undue burden or cost. An important consideration to the "reasonably accessible" argument for both sides is a determination of whether the information is available from other sources. * Determine the topics on which discovery may be needed. It may be easy to agree on the subjects about what discovery is necessary, or it may require prolonged discussion to reach a compromise. In some instances, time and expense can be saved by beginning with a single area and later expanding discovery to include other topics, if necessary. Known as "phased discovery," this can be a very effective choice, as long as it is conducted in a way that does not require duplication of effort in later phases. * Determine the relevant time frame. It is easy to limit search expectations by agreeing on the relevant time frames applicable to the litigation. In addition, it is important to agree if the parties consider the issues in the litigation to be ongoing such that the preservation of ESI created after the complaint is filed is required. * Determine the relevant key players. Identifying the key players (witnesses) in the lawsuit is a good rule of thumb. By identifying witnesses and who has control of that witness' ESI (a secretary perhaps), the ESI to be preserved and later collected can be limited. * Agree on the key words (if using word searching). If one party has a large data set to review, it may be to the benefit of everyone involved to agree on search terms that will be used to narrow the data set. Alternatives do exist to search terms such as predictive coding. Predictive coding, which uses computer assistance to perform the review, is expected to be the next great improvement in e-discovery. If either is employed, sampling and data testing should be used to ensure the relevant documents are being identified. This is especially true when using search terms. Sampling can help both parties determine if the correct key terms have been chosen based on the language used by the parties. For example, opposing counsel may not know what codes and shorthand are regularly used by the opposing party to describe a key search term until sampling is conducted. * Quality assurance is key. Insist on search quality and demonstrable, statistically valid recall. Counsel is often focused on making sure that non-responsive data is not produced and is less focused on ensuring that the responsive data is being identified and collected for review. In other words, opposing counsel should perform statistical sampling to determine if they are collecting and producing most, if not all, of the responsive documents. Counsel should find out how the opposing party will perform their review of the data. Are they going to use manual review or electronic review (including key words and concept filters)? Your client deserves a level of assurance that the responsive data has been located and will be produced.

Decide on the form of production

There is a need for cooperation on both sides regarding the form of production. It is important to determine if your case requires native format versus a "reasonably useable format." Native format means that you will receive a copy of the original electronic file, including the metadata associated with the documents. A "reasonably usable format" means you will receive a .pdf or .tif file that is searchable. One consideration is that native documents cannot be bates numbered electronically. A good compromise on this issue is to agree to produce documents in "reasonably usable format" and agree that after the production of ESI in a hardcopy or static form (.pdf or .tif), the parties may request disclosure of metadata or native files for particular documents where good cause has been demonstrated (e.g., when the original creation date of a document is at issue and disputed, or when a static image is not reasonably usable, for example, when a .pdf image is unable to capture/display all columns/information contained in a spreadsheet such as an Excel file).

It is also important for attorneys to know what program they will use to internally review the ESI documents they will receive from opposing counsel. This will allow the attorneys to request the specific type of load file their review program requires. Don't wait for delivery and then complain.

Plan for the inadvertent disclosure

No one ever wants to make an inadvertent disclosure of confidential or privileged information. However, in the process of reviewing thousands of documents, it is an inevitable possibility. The federal rules provide guidance on how to best handle this situation when it occurs. The first step is to agree in the Rule 26(f) conference on what will happen if such a disclosure occurs. Once an agreement is established up front, there will be no question about how either party will respond.

Often referred to as a claw-back agreement, this type of agreement allows the producing party a level of protection in the event of the inadvertent production. It is common for parties to agree that if a producing party inadvertently or mistakenly produces information that should have been withheld subject to a claim of confidentiality, attorney-client privilege or work product immunity, such production shall not constitute a waiver. The producing party should agree to make a good-faith representation that such production was inadvertent or mistaken and take prompt remedial action to withdraw the disclosed data upon its discovery. Opposing counsel should agree that within a set number of days of receiving a written request, the receiving party will return any documents that the producing party represents were inadvertently or mistakenly produced. The receiving party should also agree to destroy and/or "segregate" all copies, summaries or notes relating to the inadvertently produced information. This agreement should not preclude the party returning the information from making a motion to compel production of the returned information on a basis other than waiver because of its inadvertent production.

Depending on the amount and type of discovery anticipated in your case, it may be prudent to request the court issue a Rule 502(d) order as part of your discovery plan. See Fed. R. Evid. 502(d). A Rule 502(d) order affirmatively states that "the privilege or protection is not waived by disclosure connected with the litigation pending before the court." Id.

Document the Rule 26(f) conference

It is important to properly document the agreements made during the Rule 26(f) conference. Confirm in writing all agreements and understandings so there will be no questions later in the litigation. In addition, the parties are required to submit a report to the court detailing the agreed upon discovery plan within 14 days after the Rule 26(f) conference.

Conclusion

When these steps are followed, the Rule 26(f) conference can become a useful tool in the litigation war chest. It can limit costs and focus the litigation on the relevant facts of the case.